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Criminal Immigration Referrals Up from the Border Patrol

Published Jul 7, 2022

The number of criminal referrals sent by the Border Patrol and other Customs and Border Protection (CBP) officers have recently begun to rise. Detailed case-by-case government records obtained by TRAC after successful litigation show that during April 2022, CBP referred 2,015 individuals for criminal prosecution to federal prosecutors. This is the first time referrals topped the 2,000 mark since the pandemic began slightly more than two years ago. Levels in April 2022 were up 31 percent from one year earlier when in April 2021 there were a total of 1,537 criminal referrals from CBP.

Most of this increase has been for prosecution for unlawful reentry. Prosecutions for unlawful entry, which historically were much more common but rarely resulted in any significant jail time, have not shown significant recovery. Similarly, criminal referrals from Immigration and Customs Enforcement (ICE), have shown no real change. See Figure 1.

Figure 1. Criminal Referrals to Federal Prosecutors from Customs and Border Protection and Immigration and Customs Enforcement, October 2016 - April 2022

Criminal Referrals and Title 42

Two years ago, with the onset of the pandemic and the partial government shutdown, criminal referrals as well as prosecutions plummeted across all major federal law enforcement agencies. While criminal enforcement activities of the Federal Bureau of Investigations (FBI), the Drug Enforcement Administration (DEA), and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) recovered some time ago, criminal enforcement of immigration laws generally have not bounced back.[1]

There are policy reasons that help account for immigration being a special case. In March 2020 the Trump administration invoked special border control procedures allegedly tied to public health concerns associated with the pandemic. Most individuals without valid authorization were not allowed to enter the country and were immediately expelled under Section 265 of Title 42 of the United States Code. According to case-by-case records obtained by TRAC under the Freedom of Information Act (FOIA) from CBP, Border Patrol referrals for criminal prosecution immediately plummeted. Border Patrol referrals in February 2020 had reached almost 10,000, but dropped precipitously to just 295 in April 2020. [2]

While President Biden announced that he planned to end Title 42 expulsions on May 23, 2022, a federal court has blocked its termination. If and when the Biden administration is permitted to end Title 42, it remains an open question of what will happen next. One significant question is whether criminal prosecutions for border violations will bounce back to anywhere near the pre-pandemic levels that prevailed under the prior Trump administration.

Where are CBP Criminal Referrals Increasing?

While most CBP criminal referrals originate from the five federal judicial districts along the southwest border with Mexico, trends differ among these five. Arizona shows both the largest number of criminal referrals in April 2022 (636), as well as the largest increase from a year earlier (up 89%). The Western District of Texas is close behind with 592 criminal referrals representing the next largest increase of 72 percent. New Mexico, while making fewer referrals (171), also shows a substantial increase (63%).

Neither the Southern District of Texas nor the Southern District of California have any observable upward trend. Southern Texas in fact received fewer criminal referrals from CBP in April than it had in March, and fewer still than it had received a year earlier. See Figure 2 and Table 1.

Figure 2. Customs and Border Protection Criminal Referrals to Federal Prosecutors,
April 2020 - April 2022
Table 1. Criminal Referrals from Customs and Border Protection Received by US Attorney Offices Overall and for Selected Judicial Districts, April 2020 - April 2022
Month and Year US Total Federal Judicial District
Arizona S Ca N Mex Tex South Tex W
Apr-20 1,200 521 31 36 79 520
May-20 1,649 1,214 39 46 241 96
Jun-20 1,294 480 42 73 317 361
Jul-20 813 275 75 62 247 139
Aug-20 1,081 309 83 79 367 209
Sep-20 1,465 405 105 93 556 262
Oct-20 1,429 404 72 103 557 254
Nov-20 1,288 209 104 74 609 276
Dec-20 1,442 333 97 75 612 305
Jan-21 1,151 219 84 59 484 273
Feb-21 1,128 226 84 93 442 247
Mar-21 1,450 268 121 79 564 376
Apr-21 1,537 336 132 105 570 345
May-21 1,648 404 120 103 620 371
Jun-21 1,615 348 144 124 604 364
Jul-21 1,311 278 143 139 434 296
Aug-21 1,341 297 158 162 423 274
Sep-21 1,304 443 85 120 375 248
Oct-21 1,404 349 131 112 461 317
Nov-21 1,338 360 104 110 403 336
Dec-21 1,230 362 129 91 348 257
Jan-22 1,192 328 114 95 342 295
Feb-22 1,614 575 137 121 397 341
Mar-22 1,847 725 140 133 444 363
Apr-22 2,015 636 140 171 413 592

The Changed Landscape of Federal Criminal Enforcement

For decades, federal criminal prosecutions for immigration violations made up the majority of all offenses that federal prosecutors pursued. At the beginning of the Clinton administration, one in ten criminal prosecutions recorded by assistant U.S. attorneys were immigration-related according to case-by-case Justice Department records TRAC obtained after successful litigation. DOJ records started tracking prosecutions by the type of offense in FY 1986. [3]

This percentage began climbing during the Clinton administration, and continued rising during President George W. Bush’s administration. During FY 2008, the last full year of the Bush administration, immigration-related criminal prosecutions topped 50 percent of all federal offenses for the first time.

The dominance of immigration prosecutions continued throughout the Obama administration and peaked in FY 2019 under President Trump when almost two out of every three criminal prosecutions (64%) were classified by federal prosecutors as immigration-related.

During FY 2021, this immigration percentage dropped to roughly just one in four (27%). Thus far during the first seven months of FY 2022, immigration-related prosecutions have risen to 32 percent of all offenses prosecuted. Only time will tell how prosecution levels may change If and when Title 42 expulsions end.

[1]^ See TRAC December 2020 report on trends in criminal immigration enforcement, and earlier TRAC July 2020 report comparing impact of the partial government shutdown for the FBI, DEA, ATF, ICE, and CBP.
[2]^ For Border Patrol reports on its criminal referrals sent to federal prosecutors, see TRAC’s free web query app under “Special Initiatives” available at: https://trac.syr.edu/phptools/immigration/cbparrest/. While exact counts differ, case-by-case records from federal prosecutors similarly show a large drop of all referrals from CBP from 7,709 recorded in February of 2020 to just 1,200 in April 2020.
[3]^ Much of the rise reflects the growth in prosecutions for the petty offense of illegal entry. Under recording of this offense in federal prosecutor records appears to have occurred in earlier years. See TRAC August 2005 report at: https://trac.syr.edu/tracins/latest/131/.
TRAC is a nonpartisan, nonprofit data research center affiliated with the Newhouse School of Public Communications and the Whitman School of Management, both at Syracuse University. For more information, to subscribe, or to donate, contact trac@syr.edu or call 315-443-3563.